HomeMy WebLinkAboutSTH 91 / STH 44
DRIVEWAY AGREEMENT AND
EASEMENT
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Document Number
Document Title
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JUN 27 2007J U
CITY CLERK'S OFFICF
Recording Area
Name and Return Address
John E. Bermingham
P. O. Box 1190
Oshkosh, WI 54903-1190
Part of 913-2910-33 part of 913-2910-31
and part of 913-2910-40
Parcel Identification Number (PIN)
This information must be completed by submitter: document title. name & return address. and PIN (if required). Other information
such as the granting clauses, legal description, etc. may be placed on this first page of the document or may be placed on additional
pages of the document. Note: Use of this cover page adds one page to your document and $2.00 to the recordingfee. Wisconsin Statutes, 59.517.
WRDA 2/96
DRIVEWAY AGREEMENT AND EASEMENT
I. PARTIES
The parties to this agreement are:
1.01 The City of Oshkosh, a Wisconsin Municipal Corporation, (City); and
1.02 BCG Properties, LLC, a Wisconsin Limited Liability Company, (BCG).
II. RECITALS
1.01 BCG is the owner of the real estate described as follows:
Lot 1 of CERTIFIED SURVEY MAP NO. 6088 recorded in
Volume 1 of Certified Survey Maps on Page 6088 as Document
No. 1435744; being all of Lot 2 in Certified Survey Map No. 3480,
a portion ov vacated Maywood Court and unplatted lands in the
South West 1/4 ofthe South West 1/4 of Section 33, TI8N, RI6E,
and the North West 1/4 ofthe South West 1/4 of Section 4, TI7N,
RI6E, in the Thirteenth Ward, City of Oshkosh, Winnebago
County, Wisconsin.
1.02 City is the owner of the adjacent real estate westerly of the property owned by BCG,
described as follows:
That portion of the South West 1;4 of the SOUTH WEST 1;4 of
Section 33, TI8N, RI6E, in the Thirteenth Ward, City of Oshkosh,
Winnebago County, Wisconsin, lying southerly of State Trunk
Highway No. 91, easterly of the West 423 feet of said South West
1;4 of the South West 1;4 and westerly of Certified Survey Map No.
6088 recorded in Volume 1 of Certified Survey Maps on Page
6088 as Document No. 1435744 (included herein is the North Y2 of
that portion of vacated Maywood Court adjacent thereto).
That part ofthe North West 1;4 of the NORTH WEST 1;4 of Section
4, TI7N, RI6E, in the Thirteenth Ward, City of Oshkosh,
Winnebago County, Wisconsin, lying North and West of the
Northwesterly right of way line of State Trunk Highway No. 44 (as
located previous to year 1923), excepting therefrom the four (4)
following described tracts ofland, viz:
1. The West 423 feet thereof.
2. That portion thereof heretofore conveyed to Winnebago
County, Wisconsin by Deed recorded in Volume 975 on Page
171.
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3. That portion thereof heretofore conveyed to Winnebago
County, Wisconsin by instrument recorded in Volume 1071 on
Page 648.
4. Lot 1 of Certified Survey Map No. 6088 recorded in Volume 1
of Certified Survey Maps on Page 6088 as Document No.
1435744.
(Included in said legal description is the South ~ of that portion of
vacated Maywood Court adjacent thereto).
1.03 BCG has purchased its real estate from City. Access to BCG's property from State
Highway 91 has been determined by the Wisconsin Department of Transportation and
- will require passage over City's parcel to BeG's Parcel. Attached is a map showing the
access as determined.
1.04 City intends to continue to market its real estate for sale. It is possible that City's
land could be divided into two or more parcels, each relying on the same common
access to State Road 91.
1.05 The parties desire to enter into an agreement for a perpetual easement in favor of
BCG over City's Property and to set forth the relative rights and responsibilities
of the parties and future owners of City's parcel with respect to construction use
and maintenance of the access from State Highway 91.
NOW, THEREFORE, in consideration ofthe mutual covenants and agreements contained
herein and other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
III. AGREEMENT
2.01 Recitals. The foregoing recitals are adopted by the parties and made a part of this
Agreement.
2.02 Grant of Easements. City hereby grants to BCG a perpetual, nonexclusive easement for
ingress and egress over the portion of City's land marked "Common Driveway" and
"Service Driveway" on the attached map. The easement rights granted hereunder shall
extend to BCG and its respective guests, invitees, tenants, heirs, successors and assigns,
and is intended to run with the land. The easement rights granted hereunder shall include
the right to construct, maintain, repair or replace the Common Driveway and/or the
Service Driveway; provided, however, that the size or location of the Common Driveway
and the Service Driveway shall not be changed without the mutual agreement of the
parties.
2.03 Common Driveway Construction and Construction Cost. The Construction of
the Common Driveway shall be according to plans and specifications approved by
both parties hereto. The cost of initial construction shall be born by BCG. At
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such time as City sells any portion of its remaining property, the purchaser thereof
shall reimburse BCG one half ofBCG's cost of constructing the Common
Driveway. At such time as City sells additional parcels, the purchaser(s) thereof
shall equally reimburse BCG and all other users an amount equal to the future
purchaser's proportionate share (eg. 1/3, 1/4 etc) ofBCG's cost of constructing
the comrrion Driveway. Said reimbursement shall be paid by the future
purchaser(s) and remitted to BCG or others as provided herein at the closing of
any future parcel. The Common Driveway is described as:
That part ofthe S.W. 1/4 of the S.W. 1/4 of Section 33, TI8N,
RI6E, 13th ward, City of Oshkosh, Winnebago County,
Wisconsin, bounded and described as follows: commencing at the
N.W. corner oflot 1 in Certified Survey Map No. 6088, thence
South 24016'24" East along the West line of said lot 51.46 ft.,
thence South 58003'24" West 148.33 ft. to the point of beginning
ofthe parcel to be described, thence continuing South 58003'24"
West 54.01 ft., thence North 31056'00" West 51.00 ft. to a point on
the South right-of-way line of S.T.H. "91 ", thence North 58003 '24"
East along said line 54.01 ft., thence South 31056'00" East 51.00
ft. to the point of beginning. Said parcel contains 0.632 acres and is
subject to all existing easements and restrictions of record.
2.04 Service Driveway Construction and Construction Cost. The Construction of
the Service Driveway shall be according to plans and specifications approved by
both parties hereto. The cost of initial construction shall be born by BCG. At
such time as City sells any portiones) of its remaining property, and if the
purchaser(s} thereofuse(s) any portion of the Service Driveway for access to its
(their) parcel, the purchaser(s) thereof shall reimburse BCG that portion ofBCG's
cost of constructing the Service Driveway equal to the purchaser(s) proportionate
use of the Service driveway, calculated based on the square footage of the Service
Driveway used by the purchaser(s). At such time as City sells additional parcels,
and if the purchaser(s) thereofuse(s) any portion of the Service DrivewiiY for
access to its (their) parcel, the purchaser(s) thereof shall reimburse BCG and prior
purchasers that portion ofBCG's cost of constructing the Service Driveway equal
to the purchaser(s) proportionate use of the Service driveway, calculated based on
the square footage of the Service Driveway used by the subsequent purchaser(s).
Said reimbursement shall be paid by the future purchaser(s) and remitted to BCG
or others as provided herein at the closing of any future parcel. The Service
Driveway is described as:
That Part of the S.W. 1/4 ofthe S.W. 1/4 of Section 33, T18N,
R16E, 13th Ward, City of Oshkosh, Winnebago County,
Wisconsin, bounded and described as follows: Beginning at the
N.W. Corner of Lot 1 in Certified Survey Map No. 6088, thence
South 24016'24" East along the West line of said Lot 51.46 Ft.,
thence South 58003'24" West 148.33 Ft., thence North 31056'00"
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West 51.00 Ft. to a point on the South right-of-way line ofS.T.H.
"91", thence North 58003'24" East along said line 155.19 Ft. to the
point of beginning. Said Parcel Contains 0.1777 acres and is
subject to all existing easements and restrictions of record.
2.05 Future Service Driveway Construction and Construction Cost. The
Construction of the Future Service Driveway shall be according to plans and
specifications approved by City and any future purchaser gaining access to the
purchaser's parcel over the Future Service Driveway. The cost of initial
construction shall be born by the first purchaser gaining access to that purchaser's
parcel over the Future Service Driveway. At such time as City sells any
portiones) of its remaining property, and if the purchaser(s) thereofuse(s) any
portion of the Future Service Driveway for access to its (their) parcel, the
purchaser(s) thereof shall reimburse the purchaser who paid for the initial
construction of the Future Service Driveway that portion of said purchaser's cost
of constructing the Service Driveway equal to the purchaser(s) proportionate use
of the Service driveway, calculated based on the square footage of the Service
Driveway used by thepurchaser(s). At such time as City sells additional parcels,
and if the purchaser(s) thereofuse(s) any portion of the Future Service Driveway
for access to its (their) parcel, the purchaser(s) thereof shall reimburse the
purchaser who paid for the initial construction of the Future Service Driveway
and prior purchasers using the Future Service Driveway that portion of purchaser
who paid for the initial construction ofthe Future Service Driveway's cost of
constructing the Service Driveway equal to the purchaser(s) proportionate use of
the Future Service driveway, calculated based on the square footage of the Future
Service Driveway used by the subsequent purchaser(s). Said reimbursement shall
be paid by the future purchaser(s) and remitted to BCG or others as provided
herein at the closing of any future parcel.
2.06 General Maintenance, Repair and Replacement. Until City sells any additional
parcels, BCG will be responsible for any necessary and reasonable costs incurred for the
maintenance, (including snow removal), repair and replacement of the Common
Driveway and Service Driveway. At such time as there are future purchaser(s) of parcels
from City, BCG and future parcel owners shall be equally responsible for any necessary
and reasonable costs incurred for the maintenance, (including snow removal), repair and
replacement of the Common Driveway. At such time as there are future purchaser(s) of
parcels from City who use the Service Driveway for access to their parcel(s),BCG and
future parcel owners shall be responsible for any necessary and reasonable costs incurred
for the maintenance, (including snow removal), repair and replacement of the Service
Driveway based upon their proportionate use of the Service driveway, calculated based
on the square footage ofthe Service Driveway used by each user thereof. At such time as
there are future purchaser( s} of parcels from City who use the Future Service Driveway
for access to their parcel(s), said future parcel owners shall be responsible for any
necessary and reasonable costs incurred for the maintenance, (including snow removal),
repair and replacement of the Future Service Driveway based upon their proportionate
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use of the Future Service driveway, calculated based on the square footage ofthe Future
Service Driveway used by each user thereof.
No party shall incur any expense for which the parties are jointly responsible
without the prior knowledge and consent of the other party.
2.07 Damage Caused by Party. Each party shall be solely responsible for any damage to the
Common Driveway, Service Driveway or Future Service Driveway caused solely by such
party, or others exercising the easement rights granted to such party, including without
limitation, damage to the Common Driveway, Service Driveway or Future Service
Driveway caused by vehicles using the Common Driveway, Service Driveway or Future
Service Driveway in connection with the construction of improvements on the property of
a party. All such damage shall be promptly repaired by the responsible party.
2.08 Reasonable Use. Each party agrees to exercise its easement rights in a reasonable
manner so as to avoid any unnecessary interference with the use of the Common
Driveway, Service Driveway or Future Service Driveway by the other party. In addition,.
each party shall refrain from parking upon the jointly used portions ofthe Common
Driveway, Service Driveway or Future Service Driveway, or otherwise unreasonably
obstructing the Common Driveway, Service Driveway or Future Service Driveway.
2.09 Arbitration. Any dispute between the parties with respect to the interpretation or
implementation of the provisions of this Agreement shall be submitted to binding
arbitration. The owner(s) of each parcel involved in any arbitration proceeding shall pay
a proportionate share of the cost of the proceeding, excluding the attorney's fees of the
respective parties, which shall be the obligation of such parties. The final arbitration
award shall be binding upon all of the parties.
2.10 Binding Effect. The provisions of this Agreement, including all easements granted
hereunder, shall run with the land and be binding upon and inure to the benefit of each of
the parties and their respective heirs, successors, transferees and assigns, including future
purchasers of parcels from the City.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals on the day
and year first written above.
Th~Ci.t.YOfOShk~
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Richard A.Wollangk, City Mana er
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and:
Pamela R. Uhrig, City Clerk
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SUbS1J.1d and. sworn to before me
this. day of June, 2007.
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BCG, LLC
STATE OF WISCONSIN
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C . G;,A ~/dl OS,
COUNTY OF WINNEBAGO
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Subscribed and sworn to before me
this E day of June, 2007.
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ThIs document was drafted by:
John E. Bermingham, Attorney at Law
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EXHIBIT
SITUA TED ALONG S. T.H. "91". PART OF THE S. W 7/4 OF THE S. W. 1/4 OF SECTION 33, T18N, RI6E,
13TH WARO, CITY OF OSHKOSH, WlNNEBAGO COUNTY, WISCONSIN.
PARCEL 'A'
THA T PART OF THE S. W. 1/4 OF THE S. W. 7/4 OF SECTION 33, T18N, RI6E. 13TH WARD. CITY OF OSHKOSH, WlNNEBAGO COUNTY.
WISCONSIN. BOUNDED AND DESCRIBED AS FOLLOWS: BEGINNING A T THE N. w. CORNER OF LOT 1 IN CERTIFIED SURvEY MAP NO. 6088.
THENCE SOUTH 24'16'24' EAST ALONG THE WEST LINE OF SAID LOT 51.46 FT.. THENCE SOUTH 58'03'24' WEST 148.33 FT., THENCE
NORTH 31'56'00' WEST 51.00 FT. TO A POINT ON THE SOUTH RIGHT-OF-WAY LINE OF S. T.H. '91'. THENCE NORTH 58'03'24' EAST
ALONG SAID LINE 155.19 iT TO THE PO/NT OF BEGINNING. SAID PARCEL CONTAINS 0.1777 ACRES AND IS SUBJECT TO ALL EXISTING
EASEMENTS AND RESTRICTIONS OF RECORD.
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THA T PART OF THE S. W. 7/4 OF THE S. W. 7/4 OF SECTION 33. T18N. RI6E. 1.JTH WARO. CITY OF OSHKOSH. WlNNEBAGO COUNTY.
WISCONSIN. BOUNDED AND DESCRIBED AS FOLLOWS: COMMENCING A T THE N. W. CORNER OF LOT 1 IN CERTIFIED SURvEY MAP NO. 6088,
THENCE SOUTH 24'16'24" EAST ALONG THE WEST LINE OF SAID LOT 51.46 FT.. THENCE SOUTH 58'03'24' WEST 148.33 FT. TO THE
POINT OF BEGINNING OF THE PARCH TO BE DESCRIBED. THENCE CONTINUING SOUTH 58'03'24" \l>fST 54.01 FT.. THENCE NORTH
31'56'00' WEST 51.00 FT. TO A POINT ON THE SOUTH RIGHT-OF-WAY LINE OF S. T.H. "91". THENCE NORTH 58'03'24" EAST ALONG SAID
LINE 54.01 FT.. THENCE SOUTH 31'56'00" EAST 51.00 FT. TO THE POINT OF BEGINNING. SAID PARCEL CONTAINS 0.632 ACRES AND IS
SUBJECT TO ALL EXISTING EASEMENTS AND RESTRICTIONS OF RECORD.
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GRAPHIC
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EXHIBIT FOR O.A.E.D.C.
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OWNERS:
W1NNEBAGO HOME BUILDERS
ASSOCIATION, INC.
POIN1E TAX AND F"lNANCIAL llC.
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National 920-233.2884
& Fax 920-231-9872
Survey 2850 Universal S1reet
Engineering Oshkosh, WI 54904
A Divisilln of R.,I.. Smilh & Associales. Ine. WWW.nsae.com
NO. 4605A ~
JUNE 21. 2007
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